Dr Peter Winsley: Tikanga, law and information asymmetry

Justice Joe Williams in his 2013 paper Lex Aoteoroa made a case for Māori tikanga being recognized as New Zealand’s “first law”. Tikanga existed prior to New Zealand’s development of a legal system based on the British model. Without written language pre-European Māori tikanga is not well documented. However, its customs and norms governed, for example, relationships between people and the environment, property ownership, and conflict resolution.

All cultural groups have their own customs and beliefs. Some customs improve life at minimal cost, for example politely waiting in queues, and saying, ‘thank you’. Some such as slavery and cannibalism are so abhorrent, they have disappeared from the civilized world. Some are absurd but do little harm, for example a sect in Afghanistan bans paper bags for fear they are made from pulped copies of the Koran.

Shakespeare in Coriolanus warned that customs that become irrelevant are ultimately harmful:

“What custom wills, in all things should we do’t,

The dust on antique time would lie unswept,

And mountainous error be too highly heaped

For truth to o’erpeer.”

However, tikanga has been flexible enough to evolve in response to environmental and social change.

Key concepts within tikanga include whakapapa, whanaungatanga or kinship obligations, mana (including leadership obligations), utu or reciprocity, and kaitiakitanga or custodianship. The dichotomy between tapu (sacred) and noa (common) persists in a largely secular New Zealand.

“Law” is the system of enforced rules which a country or community uses to regulate its members’ actions. It can be created through government statute and regulations. “Common law” is created by judges in largely commonwealth countries and in the United States. Common law is a complement to, not a substitute for statute law.

“Tikanga” encompasses customs, how people are expected to behave in different social contexts, and wider belief systems. Tikanga as custom may influence common law. It may be reinforced in statute law. For example, some collectively owned Māori land cannot be sold because of both its legal status and tikanga. Some law, especially in the marine and fisheries estates has long supported what amounts to rāhui tikanga. Rāhui stipulate how a specific place or resource is to be managed. Rāhui might for example ban the harvesting of a depleted seafood resource to allow it to regenerate.

Tikanga has gained prominence in recent years through the “Peter Ellis case”. Ellis was a creche worker who in the early 1990s was convicted (on weak evidence) of sexual offences against children, and jailed. He appealed and sought pardons and was turned down. Shortly before his death in 2019, he filed an appeal against his convictions in the Supreme Court. He passed away before the appeal could be heard. However, the Court’s Justice Glazebrook and Justice Williams asked lawyers from both sides to consider the case from a tikanga perspective.

The Supreme Court then met and quashed Ellis’ convictions, finding there were problems with the evidence of the main prosecution witness, and that the jury had not been fairly informed of difficulties with the children’s evidence.

The case is cited as showing that tikanga Māori can address how posthumous reputation issues could be handled for all New Zealanders, noting that Ellis was not Māori. However, there is nothing new about action being taken to restore otherwise tarnished reputations of deceased people. In Britain, the Richard 111 Society was set up in 1924 to rehabilitate Richard’s reputation, given Shakespeare’s treatment of the King in his play. Soldiers who were shot for desertion in World War One were later exonerated when shell shock was recognized as a neurological trauma rather than a sign of cowardice.

There is a long history of heretics being condemned in their lifetimes and then pardoned when their views became mainstream. The time frames can be very long. Galileo was convicted by the Roman Catholic Inquisition in 1633. It took until 1992 for a sardonic newspaper billboard to read: “Galileo got off”.

Given the above, it is not obvious that tikanga made a meaningful or precedent-setting contribution to New Zealand law through the Ellis case.

The distinguished KC Gary Judd has complained to Parliament’s Regulation Review Committee concerning the Professional Law Examinations Tikanga Māori Requirements Amendment Regulations 2022 (“tikanga regulations”). Judd’s complaint elicited a less than scholarly rejoinder from a university Dean of Law. This illustrates that New Zealand still has vibrant freedom of speech – for now.

The tikanga regulations will make it compulsory for all students commencing a law degree from 1 January 2025 to complete a subject on the general “principles and practices” of tikanga Māori. Tikanga Māori is to be included in all other subjects which are part of the compulsory requirements for the LLB and LLB Honours degrees.

These regulations raise many questions. “Principles and practices” vary within and between iwi and are not an appreciable part of the formal law system. Why should law students be required to study tikanga and not the many other belief systems in New Zealand that are potentially relevant to our legal system? Will the regulations encroach on Parliamentary sovereignty, which goes back at least as far as the “Glorious Revolution” in 1688?

Our legal system and our wider public institutions are secular while tikanga often has a spiritual dimension. This is articulated in a Māmari Stephens November 2023 presentation Religious and spiritual aspects of tikanga Maori and the settler legal system: An exploration of rahui. This presentation argues that the sacred must be part of rāhui and that rāhui protects us from the dangers of the sacred, whatever those dangers may be.

This presentation touched on a putative though currently informal Te Tiriti Article 4 which would protect several faiths of England, including Catholicism, and also protect Māori custom. The context for this is that at the time of the 1840 Te Tiriti negotiations, Governor Hobson gave Bishop Pompallier verbal assurance of religious freedoms for New Zealanders. However, it is unlikely that either the Crown or the key Māori leaders of the time would have accepted a fourth Article of Te Tiriti being casually developed in an informal conversation between two individuals.

Te Tiriti therefore remains a secular document that confers equal democratic and political rights on all New Zealanders. The rights to freedom of thought, belief and religion are guaranteed under the Human Rights Act and the New Zealand Bill of Rights Act rather than under Te Tiriti.

Tikanga includes spiritual or religious beliefs that are both transcendental for believers, and a social glue that holds people together. However, these beliefs cannot be admissible in court since our democracy is based on reason, the search for truth and the rule of law. Scientific evidence must prevail in court over the postmodern assault on science.

Tikanga has always arisen and been validated from lived experience. It has not been created from abstract and conceptual thinking and symbolic logic. It is difficult to see tikanga contributing definitively to cases where there is dispute over highly technical issues such as science content and research methodologies. Such cases may address resource management and natural environment-related issues where much tikanga, while valuable, is qualitative, subjective and inexact.

VUW’s Māmari Stephens is leading research to create a digital ‘companion’ to assist those learning about New Zealand law to understand how tikanga Māori operates as norms for Māori communities, and how these norms and related practices can interact with the general legal system in New Zealand.

Māmari has worked as a probation officer where she observed life’s many sides and is an ordained Anglican priest as well as a senior law academic. She lacks the coarseness and duplicity of some of her counterparts in other universities.

However, the VUW work as structured is unlikely to lead on its own to betterment. We must first get our priorities right and defend democracy in New Zealand. We must ensure that “it is an ever-fixed mark, that looks on tempests and is never shaken…the star to every wandering bark, whose worth’s unknown, although his height be taken.” Without strong democratic foundations New Zealand will become a middling tribalistic country with the corruption and torpidity that comes with it. It will lose its mana and voice internationally.

The Waitangi Tribunal, the Human Rights Commission, some select committees and the Supreme Court itself have at times gone beyond their briefs and behaved more like activists than adjudicators. Tiriti “settlements” often expand into wider claims or generate unintended consequences. Some of the more complex Waitangi Tribunal claims such as Wai 262 are reminiscent of the Jarndyce vs Jarndyce court case in Bleak House. This Dickensian case drags on for so long that the original litigants are long dead and everyone else has forgotten what it is all about and yet generations of lawyers are still “earning” fees from it.

The absurd contention that Māori never ceded sovereignty to the Crown may not only cause huge legal costs and investment uncertainty. It may also divert Māori students towards law, society and cultural studies and away from the wealth-creating and wellbeing fields such as science, technology, engineering, IT and medicine.

Under John Key’s agreements with the Māori Party, New Zealand acceded to the United Nations Declaration on the Rights of Indigenous Peoples in 2010. This was done without much public awareness and with minimal debate. New Zealanders were assured that the agreement would not harm their interests in the marine and coastal estate, especially around access to beaches and amenity values such as recreational fishing.

However, under the Marine and Coastal Area (Takutai Moana) Act 2011, by 2024 iwi had lodged claims with either the Waitangi Tribunal or through direct negotiations with Ministers for most of New Zealand’s coastal space.

The 2019 He Puapua report to Government (based on the Matike Mai report to the Iwi Chairs Forum) was known to few people inside or outside government, yet it amounted to a proposal for a constitutional upheaval on a massive scale.

What drives much economic growth is partially appropriable non-rival goods. These goods may cost a lot to develop but they have a very low or near zero marginal cost of adoption for each new user. An example is the R programming language co-developed by Ross Ihaka – perhaps New Zealand’s greatest contribution to international technology.

Discourse on Te Tiriti, tikanga and related matters seems to ignore one of the most important determinants of economic performance: asymmetric information. Information asymmetry occurs when two parties in a transaction have different knowledge. Typically, this means that the party with better knowledge can exploit the other party.

George Akerlof, Michael Spence and Joseph Stiglitz won Nobel prizes for their work on information asymmetry. Kenneth Arrow in 1963 created much of the foundation for health economics by analysing the structures, behaviours and regulation of the medical sector through an information asymmetry lens.

Information asymmetry exists at all levels. At the micro level, selling a leaky home to an unsuspecting buyer is an example of damage from asymmetric information. At the macro level, in 2007-8 the Global Financial Crisis (GFC) almost collapsed the world’s financial system. The GFC had much of its origins in the invention of complex financial derivatives which made it difficult for buyers, sellers and regulators to understand who owned what. For example, in mortgagee sales it was often impossible to link debt to specific properties.

“Buyer beware” is unethical. Ideally, in future all involved in a transaction should have the same information; that is information asymmetry should be seen as a breach of the Golden Rule, and also of tikanga. AI has huge implications for information dissemination and access and this will impact on information asymmetry.

The Treaty Principles Bill will be contentious, however it is possible it will be largely irrelevant in the future world. Specifically, the future focus may be on using the power of generative AI to overcome the costs that information asymmetry imposes. The law, economic and digital technology academics need to work closely and purposefully on this opportunity if we want to make a success of it.

References
Stephens, M. 2023: Religious and spiritual aspects of tikanga Māori and the settler legal system. An exploration of rāhui. Presentation at a Wānanga symposium at Waitangi, 17 November 2023.

Dr Peter Winsley has worked in policy and economics-related fields in New Zealand for many years. With qualifications and publications in economics, management and literature. Peter blogs at Peter Winsley - where this article was sourced.